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So-Called First Amendment Defense Act Would Roll Back Critical Protections for LGBTQ People

by Hayley Miller July 09, 2016


On Tuesday, the House Oversight and Government Reform Committee will hold a hearing on the so-called First Amendment Defense Act (FADA).

FADA seeks to foster state sanctioned discrimination under the guise of religious liberty. On its face, this legislation purports to prohibit “discrimination” by the federal government based on individual’s religious beliefs about marriage. In reality, this bill would allow individuals, many businesses, and nonprofit organizations—even those nonprofit organizations and businesses contracting with the federal government— to circumvent critical federal protections and allow blatant discrimination against LGBTQ families.

Tuesday is also the one month anniversary of the horrific attack in Orlando where 49 LGBTQ people and allies were murdered and 53 others wounded.

Among the legislation’s many harms, FADA would allow any privately owned business to refuse to let an employee take time off to care for their same-sex spouse, in violation of family and medical leave laws – a particularly appalling aspect given the many families currently caring for those who were injured in the Orlando shooting.

FADA would roll back critical protections for LGBTQ people and their families, a majority of which were implemented under the Obama Administration. Here are just some of the protections that FADA could weaken:

  • Executive Order 11,246 prohibits employment discrimination on the basis of sexual orientation and gender identity by federal contractors.  However, under FADA, the federal government would be required to continue to contract with a business with a record of discriminatory employment practices against married gays and lesbians if that employer cited their belief that same-sex marriage was wrong as the reason for the discrimination.
  • Currently, hospitals receiving Medicare and Medicaid must allow a patient to have any visitor they request—including a same-sex spouse.  Under FADA, a hospital could state that allowing such visits would sanction same-sex marriage and would be a violation of their religious liberty.
  • The Department of Housing and Urban Development has also recently issued guidance that shelters receiving HUD grants must not discriminate against same-sex married couples.  An organization could cite FADA and provide their religious conviction against same-sex marriage as a reason to put a same-sex couple back on the street.
  • Despite protections in the Fair Housing Act and strong administrative guidance from HUD, commercial landlords could be empowered to violate fair housing laws by refusing housing to a single mother or same-sex couple based on religious belief that sexual relations are reserved to different-sex married couples.
  • The Violence Against Women Act (VAWA) provides explicit protections from discrimination against LGBTQ beneficiaries.  However, under FADA, an emergency shelter receiving VAWA funds to provide services for survivors of intimate partner violence could turn away someone in a same-sex marriage because of their personal religious belief.
  • The 1993 Family and Medical Leave Act grants a statutory right to 12 weeks of leave for personal illness or caregiving – including caring for a spouse.  The Department of Labor has issued clear administrative guidance that these rights extend to same-sex married couples.  However, under FADA, closely held businesses or not-for-profit organizations would be allowed to discriminate by refusing to let an employee care for their sick same-sex spouse despite these clear federal protections.

Hayley Miller
Hayley Miller


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